What Is a Private Citizen to Do (When Caught in the Middle of an Interbranch Dispute)?

Marty Lederman

According to at least some Bush loyalists, the answer to that question appears to be: "Break the law, because I'm grateful to the President for all he's done for me."

Sara Taylor, until recently a federal official but now a private citizen, is appearing before the Senate Judiciary Committee this morning, pursuant to a subpoena. She claims to be a "willing and cooperative private citizen." Except that she is not cooperative, nor willing to answer the Committee's questions about how and why the Administration decided to remove the U.S. Attorneys. Why not? Because on Monday, her attorney Neil Egleston received a letter from the White House Counsel notifying Taylor that "the President has directed her not to provide [the] testimony" responsive to the subpoena.

Taylor writes that she "intend[s] to follow the President's determination." Why? Not because she has concluded that the President is correct about the executive privilege question -- indeed, in the very next sentence, she writes that "I do not have ability independently to assess or question the President's determination." No, it appears that she is following the President's "direction," rather than Congress's determination that the assertion of privilege is unjustified, simply because she is loyal - "grateful" -- to the President.

Presumably, the same kabuki dance will occur tomorrow in the House Judiciary Committee, where we can assume Harriet Miers will likewise follow the President's "directive." (I assume her lawyer, George Manning of Jones, Day, has received a virtually identical letter from Fred Fielding.)

[UPDATE: Yes, there were similar White House letters to Manning "directing" Miers not to produce documents or to testify, and she is refusing to appear altogether at tomorrow's hearing. In his letter to the House Judiciary Committee, Miers's attorney states that Miers thus is "subject to conflicting commands" -- indeed, that Miers "has no choice othen than to comply with direction given her by Counsel to the President." For the reasons expressed below, this is flat wrong. She is subject to only one legal command -- to testify. And she has a choice -- and she's choosing to violate the law.]

Now, this is odd, to say the least. Let's look more carefully at what's happening here. Taylor and Miers actually are faced with legal "directives" -- subpoenas from congressional committees. And their failure to give testimony responsive to the subpoenas is a crime, by virtue of a duly enacted statute (2 U.S.C. 192). The President, of course, believes that the application of that statute is unconstitutional in this case, because of privilege -- but neither Taylor nor Miers has personally concluded that the statute is unconstitutional as applied here (in which case noncompliance would, perhaps, be an example of civil disobedience). And, notwithstanding any rhetoric from Fred Fielding, the President does not have any legal power to "direct" Taylor and Miers (both private citizens) to violate the statutory obligation -- to commit a crime -- whatever his view of the constitutional question might be. Most importantly, the President has taken exactly no legal steps (i.e., seeking an injunction) to prevent the application of the statute here.

All of which is to say that Taylor and Miers have chosen to commit a federal crime, and to disregard the only legal directives (the subpoena, the federal statute) to which they are in fact subject.

This is decidedly not the way things have ordinarily operated when a private citizen is caught in the middle of a constitutional struggle between the two political departments. There is, in fact, a very prominent precedent, and it points in a very different direction.

The precedent in question will sound familiar. In 1976, "the Subcommittee on Oversight and Investigations of the House Committee on Interstate and Foreign Commerce . . . was interested in determining the nature and extent of warrantless wiretapping in the United States for asserted national security purposes. It was concerned with the possible abuse of that power and its effect on privacy and other interests of U.S. citizens, and with the possible need for limiting legislation." 551 F.3d at 385. The warrantless wiretaps in question used facilities that AT&T provided to the government. The Committee therefore issued a subpoena requiring the president of AT&T to turn over to the Subcommittee copies of all national security request letters the FBI had sent to AT&T and its subsidiaries, as well as records of earlier wiretaps. And, "[a]fter the subpoena was issued, AT&T stood ready to comply." Id. at 385-386.

At this point, the White House, which took the view that the AT&T documents were privileged, approached the Subcommittee Chairman in an attempt to accommodate the dispute. The interbranch negotiations almost succeeded, but broke down at the last minute, on July 22d, at which point "President Ford instructed AT&T, 'as an agent of the United States, to respectfully decline to comply with the Committee subpoena.'" Id. at 387 (quoting Ford letter). "It appeared, however, that AT&T felt obligated to disregard these instructions and to comply with the subpoena the following day." Id. At which point DOJ initiated a lawsuit in the name of the United States, and obtained a temporary restraining order prohibiting AT&T from complying with the Subcommittee subpoena. The Subcommittee Chair intervened in teh case on behalf of the House, the real defendant in interest, "since AT&T, while prepared to comply with the subpoena in the absence of a protective court order, ha[d] no stake in the controversy beyond knowing whether its legal obligation is to comply with the subpoena or not." Id.

And that's the way the system should work, especially where, as here, the private party does not have a view about the constitutionality of the statute and the subpoena. That private party should comply with the law, and the burden should then be on the party asserting that the law is unconstitutional -- the President -- to seek an injunction preventing operation of the law.

Taylor has told the Committee that she is agnostic on who should win the constitutional dispute, that she will "commit to abide by a judicial determination that may flow from a subpoena enforcement action against the White House" and "will answer [the Committee's] questions if the courts rule that this Committee's need for the information outweighs the President's assertion of executive privilege."

That is all very proper -- and of course the congressional committees will not put Miers or Taylor in custody if and when the question is teed up to the courts for resolution.

But in the meantime, Taylor (and, I presume, Miers) has decided simply to violate federal law, and to disregard the only legal "directives" to which she is subject (including a federal statutroy obligation) -- not because she has concluded that such statute and directive are unconstitutional (which would raise a slightly different question -- it would probably mean that she herself should be obliged to seek judicial relief), but merely out of loyalty to the President . . . a consideration that apparently is more important than compliance with actual legal obligations.

Hold on, though. As much as I hate the Bush Administration, they probably have a valid point.

I'm an attorney. If I were subpoenaed to talk about one of my clients, I would have to follow my client's "directive" if the panel wanted to ask about my client's conversations with me. And this is true even though my client has no legal power to order me to do anything.

I think the same reasoning would apply here -- if a privilege belongs to the President, then anyone working for the President and party to the privileged communications is probably under an ethical obligation not to disclose those communications without the President's consent.

(I suppose one counter-argument would be that Sara Taylor could write a book about these conversations and not be subject to any sort of formal consequence.)

I agree with Steve. Let me use the standard situation of a privilege issue for a corporate employee as an example.

I've handled the situations both ways. Sometimes it makes sense to move for a protective order and preclude the questioning altogether. Most of the time, though, it makes more sense to let the questioning go forward and refuse to respond to specific questions, thereby creating a record of the precise points of dispute. The questioner can then bring the motion to compel further responses.

The advantage to the latter procedure is twofold:

1. It puts the burden of making the motion on someone besides my client.

2. The legal issues are generally much narrower when specific questions are at issue than when a protective order is involved.

Applying this to Ms. Taylor, I assume she is aligned with the President. Therefore, her actions would be those which make life easier for the Administration. The strategy, then, would be to force Congress to take the laboring oar regardless of the merits of the privilege objection. If I were her lawyer, I'd be pretty confident that no court would sanction her unless she first refused to obey a court order (e.g., FRCP 37 (b)), so the risk is minimal anyway.

In my experience also, former employees of a corporation will typically follow the instruction not to answer based on privilege issues.

Steve, the difference is that as lawyers, we have a countervailing ethical obligation not to reveal the confidences of a client without consent -- an obligation that is enforceable against us (through disciplinary proceedings). That would be, presumably, your basis for refusing to testify, although of course whether that was a sufficient defense to a contempt citation would be another question, one that I don't know the answer to. But I would certainly think your refusal would be warranted as you would be caught between competing state-imposed obligations.

Sarah Taylor and Harriet Miers are under no such countervailing obligation, period, unless of course they're the President's attorneys. But there's been no suggestion that's the case, far as I know.

In response to Mark, the difference between this and your situation is that the Federal Rules of Civil Procedure (for example) specifically exempt privileged matter from discovery; the Federal Rules of Evidence also exempt privileged matter from being admissible as evidence -- and so you have express legal authority for a corporate employee to refuse to answer a question where that answer would breach privilege.

Marty's point is that there is no such law here, and so Sarah Taylor and Harriet Miers are, without any recognized legal basis, refusing to obey a lawful subpoena. Try that with your corporate employees, and see how quickly they end up in the local federal detention center.

As any reasonably competent lawyer knows, Executive Privilege is not the same as, and arguably broader than, attorney-client privilege -- last time I checked, "Executive Privilege" was not covered under the Federal Rules of Civil Procedure either -- for instance, is a "privilege log" required for the President to assert Executive Privilege? Will the courts even rule on the matter or toss it out as a "political question"? Chuck Schumer, at least, seems to think Taylor testifying at all "waived" the privilege. So much for trying to cooperate with Congress. I sure hope Harriet Miers's attorney is watching today's hearing.

Ah, goalpost moving -- the last refuge of the mentally challenged Republican. Charles, you argued that Miers was White House counsel, implying that this was a basis for her refusal to testify. When I pointed out that her being WH counsel says nothing about whether a/c privilege attached, you now say, "well, it's not the same thing!" What's next, I'm rubber you're glue?

In response to Mark, the difference between this and your situation is that the Federal Rules of Civil Procedure (for example) specifically exempt privileged matter from discovery; the Federal Rules of Evidence also exempt privileged matter from being admissible as evidence -- and so you have express legal authority for a corporate employee to refuse to answer a question where that answer would breach privilege.

Marty's point is that there is no such law here, and so Sarah Taylor and Harriet Miers are, without any recognized legal basis, refusing to obey a lawful subpoena. Try that with your corporate employees, and see how quickly they end up in the local federal detention center.

I don't think the presence or absence of a statute is determinative here. Executive privilege is a recognized common law privilege (which, for the record, I disagree with in this case). The courts are likely to treat it just as they would other privileges; that's their natural mind-set. That means no actual sanction for the witness unless and until she disobeys a court order to answer.

Not only that, Steve, but I do believe the President DOES have the legal power to "direct" Taylor and Miers to Gitmo ; )

Meaning, I think, that if they talk they end up at gitmo's "waterboard bed and breakfast". That's just as good as a executive directive - maybe even better. Maybe W has no need of presidential directives. He just needs to remind certain people about loyalty ;-)

Actually I don't understand Marty's point. These women have to appear before the congressional committee in accordance with the subpoena, but they can't be obligated to discuss any communications that would be covered by executive privilege. They (the witnesses) do not hold the privilege. And so, it is not them that is invoking the privilege, rather the President himself. I don't see the problem (if the invocation is appropriate) of them refusing to answer because the privilege-holder has not waived privilege.

I didn't "argue" or "imply" anything -- you claimed ". . . Harriet Miers [is] under no such countervailing obligation, period, unless of course [she is] the President's attorney[]. But there's been no suggestion that's the case, far as I know." I simply pointed out she was White House Counsel (on top of the "normal" Executive Privilege" asserted for both her and Taylor). Feel free to "argue" with Mr. Field whether there is any such thing as "Executive Privilege" -- I'm tired of that debate.

I would presume that executive privilege is like other evidentiary privileges like attorney/client and marital.

The person protected by the privilege, in this case the President, has the power to exercise the privilege.

When the party benefited by the privilege exercises the privilege in a judicial proceeding, the court will enforce the privilege and bar the testimony which falls under the privilege even if the witness wants to testify.

When it subpoenaed witnesses to give compelled testimony under oath to conduct fact finding, Congress is arguably acting as the prosecutor in a quasi judicial proceeding and executive privilege as well as any other privilege apply.

What is missing in this quasi judicial proceeding is a judge to determine whether executive privilege applies. If executive privilege applies, as it most certainly does if there is no criminal wrongdoing, then Congress has no power to compel the testimony on its own any more than a prosecutor does.

Like a prosecutor in court, if it thinks the privilege does not apply, Congress needs to ask a court to make a ruling and order the witness to testify. This is their action, not the President's, and Congress needs to initiate the legal action. Methinks the Dems in Congress know they would lose if they did go to court.

O.K., now I'm going to "argue" with Bart -- Executive Privilege (assuming there is one) is broader than the attorney-client or spousal-communication privilege -- it was first asserted by President Washington in 1796 when he refused to comply with a request by the House of Representatives for documents which were relating to the negotiation of the then-recently adopted Jay Treaty with England. No "court" was involved, no "privilege log", none of the mechanisms of attorney-client applied, etc. With "Executive Privilege" we are talking about seperate branches of government operating with some degree of freedom from the control or supervision of the others.

In that first case, above, President Washington correctly noted that the Senate alone plays a role in the ratification of treaties, and therefore the House had no legitimate claim to the material. As to the present case, will Senator Schumer permit discovery of HIS internal deliberations, or even identify WHO he is obtaining information from, in order to question these witnesses? It seems that a very "broad" application of privilege would be invoked in that instance. Similarly, Executive Privilege should be accorded great deferrence -- it is not based on the same policy concerns as attorney-client or spousal-communication privileges -- worse case scenario, this will drag out in the courts for more than a year and then be moot ; )

Like a prosecutor in court, if it thinks the privilege does not apply, Congress needs to ask a court to make a ruling and order the witness to testify. This is their action, not the President's, and Congress needs to initiate the legal action. Methinks the Dems in Congress know they would lose if they did go to court.

Charles:worse case scenario, this will drag out in the courts for more than a year and then be moot ; )

As to the present case, will Senator Schumer permit discovery of HIS internal deliberations, or even identify WHO he is obtaining information from, in order to question these witnesses? It seems that a very "broad" application of privilege would be invoked in that instance.

This is doubly irrelevant. First, Shumer's thought processes are relevant to nothing at all. Second, there IS a textual basis for Congressional privilege in the speech and debate clause. Claims of executive privilege have no such textual support, though the SCOTUS did assume their validity in US v. Nixon (but then overruled the privilege for purposes of a criminal investigation).

that's not correct. a privilege must be asserted by the proponent of the privilege, and must state facts that supports the claim. Prof. Lederman's whole point is that neither of the witnesses are (yet) claiming a privilege, they are merely saying they will follow the directives of the president. whether the testimony and documents are actually privileged is a subsequent issue. first the privilege must be asserted by a person who has the right to assert it in the proceeding. the president is not, yet, involved in the proceeding. it is not clear (yet) that the witnesses have the right to assert the privilege themselves. it is possible the president can intervene, and ask a court to quash the subpoena, or the witnesses could refuse to testify or produce documents by assertion of the privilege, but so far it does not seem they are actually asserting it.

procedurally, congress has no case or controversy (yet) to take to court. the witnesses, if they refuse to testify by invoking the privilege, will create a controversy. the president, if he goes to court to quash the subpoenas, will create a controversy. if the witnesses refuse to testify because the president asked them to, they will also create a controversy, but it will be for contempt of congress, as they have not asserted a legally recognized privilege to testify. the congress cannot challenge a claim of privilege until it is actually asserted, otherwise the court would be asked to make an advisory opinion. the current situation seems to be a claim of "i'm-not-gonna-testify-because-the-president-asked-me" and is not a legally recognized way to avoid a subpoena without a contempt citation. therefore, until the privilege is actually asserted, at the hearing, the witnesses should be found in contempt.

Schumer's thought processes are relevant to a purported coup d'état (you see, I can make up allegations against political opponents too). And, regardless of the specific speech and debate clause, the fact that powers are divided between the three branches of government is also a "textual" support for the privilege, whether executive, legislative, or judicial (I think Fielding made a great point in his recent letter to point out that judges / law clerks expect their deliberations will remain confidential too).

nerpzilla:

Turn on the news -- at least one witness, Sara Taylor, has indeed refused to testify as to at least a few specific questions, based on the President's assertion of Executive Privilege -- have fun debating with Mr. Field whether there is such a legally recognized privilege -- keeping in mind, of course, it will be the ROBERTS Supreme Court deciding, not you two (assuming it is not ruled a "political question" first ; )

O.K., now I'm going to "argue" with Bart -- Executive Privilege (assuming there is one) is broader than the attorney-client or spousal-communication privilege -- it was first asserted by President Washington in 1796 when he refused to comply with a request by the House of Representatives for documents which were relating to the negotiation of the then-recently adopted Jay Treaty with England. No "court" was involved, no "privilege log", none of the mechanisms of attorney-client applied, etc. With "Executive Privilege" we are talking about seperate branches of government operating with some degree of freedom from the control or supervision of the others.

I do not disagree with your historical overview. I would only observe that the courts have become involved in this ongoing spat between the executive and legislative branches. My reason for bringing up the court was to point out that Congress may not play that role here.

My post was directed at the much narrower issue of whether the President has the power to direct a former or current advisor not to testify to Congress concerning matters covered under executive privilege and I do not see why he could not.

Schumer's thought processes are relevant to a purported coup d'état (you see, I can make up allegations against political opponents too).

I certainly can't argue with your parenthetical.

If Shumer's thought processes were relevant to a coup (they aren't -- that's the whole point of the treason clause), then the President would at least have to arrest him before they became relevant. IOW, there would first have to be a case.

Congressional investigations, however, don't require a judicial case to be relevant.

Lastly, Shumer's thought processes for the purpose of questioning witnesses at a Congressional hearing (your original hypothetical) are absolutely privileged under the speech and debate clause. Whatever the extent of executive privilege, US v. Nixon makes clear that it is not absolute.

I think Fielding made a great point in his recent letter to point out that judges / law clerks expect their deliberations will remain confidential too

That's not a "great point", that's an obvious red herring. Which, I guess, most red herrings would be.

Mr. DePalma - that's not correct. a privilege must be asserted by the proponent of the privilege, and must state facts that supports the claim.

The constitution does not place any procedural requirements on the President.

Prof. Lederman's whole point is that neither of the witnesses are (yet) claiming a privilege, they are merely saying they will follow the directives of the president.

This is as it should be. The President exercises this privilege, not his advisors. I am arguing that, when the President exercises that privilege, that the advisors should respect the President's decision until otherwise ordered by a court.

procedurally, congress has no case or controversy (yet) to take to court. the witnesses, if they refuse to testify by invoking the privilege, will create a controversy. the president, if he goes to court to quash the subpoenas, will create a controversy. if the witnesses refuse to testify because the president asked them to, they will also create a controversy, but it will be for contempt of congress, as they have not asserted a legally recognized privilege to testify. the congress cannot challenge a claim of privilege until it is actually asserted, otherwise the court would be asked to make an advisory opinion.

The President has already asserted the privilege. Does anyone here know whether that is enough to take to court or do the witnesses actually have to be brought to testify first?

There is a very serious ethical issue involved in Ms. Taylor's counsel advising her client to violate a federal law.

Charles' comments exemplify the point that it's really about nothing more than raw power, though. Watch him attempt to taunt the liberals with declarations that the Supreme Court is stacked against them and there's nothing they can do about it. That's the kind of people we're dealing with here. Small wonder they ignore the law when it suits them.

Turn on the news -- at least one witness, Sara Taylor, has indeed refused to testify as to at least a few specific questions, based on the President's assertion of Executive Privilege

methinks you need to turn on the news. looks like Ms. Taylor has relented a bit in her following of the president's directive.

-- have fun debating with Mr. Field whether there is such a legally recognized privilege -- keeping in mind, of course, it will be the ROBERTS Supreme Court deciding, not you two (assuming it is not ruled a "political question" first ; )

i would hope the Roberts Court decides the issue according to the law. i have made no decision as to whether the executive privilege covers any or all of the information Congress seeks. it just appears, procedurally, it has not yet been properly asserted, and that there are not yet sufficient facts that would support such an assertion.

Specifically, does either witness have the right to assert the privilege? does either witness have a sufficient relationship vis-a-vis the president to be under a duty to assert the privilege in his stead? and does the specific information sought fall into the privilege, or is it not protected? blanket assertions seldom work, you must back up your claims with facts that would allow the opponent to ascertain if the claim is proper. Perhaps the information is privileged, but so far there is not enough information to determine the applicability of the privilege.

Mr. DePalma-

The Constitution does not grant the President executive privilege either. Claiming there is no procedure for asserting executive privilege because of a lack of textual support, when the privilege itself does not have any textual support is not a very convincing argument. The president can not assert privilege willy-nilly, there still must be a factual scenario which allows the privilege to serve the purpose for which it was recognized as a valid privilege. it has certain constraints, and those constraints must be demonstrated before the privilege can be upheld. as you said, the president owns the privilege, not the witness. but, the witness must be under a duty to follow the direction of the president, not just choose to follow his direction contrary to the subpoena from congress. are these witnesses ones that must follow his directive? this is the big procedural hurdle that i feel has not yet be proven one way or the other. furthermore, the executive privilege would not extend to everything Ms. Taylor has done. certainly, she could testify regarding activities that do not involve internal deliberations. it seems she must testify, and if she is a person under a duty to follow the directives of her principal (the president), and the question asked would require a response containing material covered by the executive privilege, the she could refuse to testify based on the president's assertion. but to say you won't abide by a congressional subpoena because the president asked you not to (as opposed to having an affirmative duty to him not to) is not a valid defense.

"What is missing in this quasi judicial proceeding is a judge to determine whether executive privilege applies. If executive privilege applies, as it most certainly does if there is no criminal wrongdoing, then Congress has no power to compel the testimony on its own any more than a prosecutor does."

No, Bart, executive privilege does not shield all executive branch deliberations short of criminal wrongdoing. Rather, executive privilege is a qualified privilege that applies to the deliberative process and can be outweighed by a criminal INVESTIGATION. The Supreme Court in Nixon did not require proof that Nixon or his aides had committed crimes; the mere existence of a grand jury subpoena was held sufficient.

Thus, to win his privilege claim, Bush would have to show that (1) there are deliberations covered by the privilege (which would seem to be inconsistent with his claim that he wasn't involved and the firings were all done by lower-level aides), and that (2) the congressional subpoena is distinguishable from the grand jury subpoena (a very complicated question).

But neither prong is dependent on there being criminal conduct. It is well established by over 200 years of history that Congress has the power to conduct oversight of the executive branch for purposes such as passing future legislation, investigating unethical as well as illegal conduct, etc. Now maybe, in the face of a properly asserted executive privilege claim, this power will be held to be insufficient to override the claim of privilege, but it doesn't have anything to do with whether a crime has been committed.

You may want to actually read the Supreme Court decision in Nixon. The Supremes instructed the criminal court to review the demanded materials in camera and only forward those materials which were relevant to criminal charges to the prosecutor with great deference to the President.

Consequently, the Congress can hardly point to this decision as precedent for arguing as you do that executive privilege can be overcome merely by a congressional request for testimony.

Oh, please Bart -- you really expect they are going to READ the decision they think is such a slam dunk for them?! See "The Cal Tillisch High School Chemistry Lab Assignment Method of Constitutional Interpretation" thread above.

I'm not getting this. You mean, if Prof. Lederman were my lawyer, and he were subpoenaed to testify about our conversations, he wouldn't assert attorney-client privilege even if I told him to, unless I got a restraining order ordering him not to testify? Boy, I'm glad he's not my lawyer!

Or is Prof. Lederman saying that executive privilege is different from other kinds of privileges, and has to be asserted using a procedure different from that for other privileges? In which case, I wish he would cite some authority, because the case he cites doesn't involve executive branch employees, or executive privilege, or anything very relevant to the case at hand.

"I'm an attorney. If I were subpoenaed to talk about one of my clients, I would have to follow my client's "directive" if the panel wanted to ask about my client's conversations with me. And this is true even though my client has no legal power to order me to do anything."

Didn't work for Clinton; it was held that his attorney-client privilege could not apply because the lawyer in question was paid by the taxpayer.

There actual resolution is that indicated by Marty Lederman, and the course essentially followed by Taylor: obey the subpoeana, and invoke the "privilege" when it seemed necessary.

And to hell with the rule of law, so long as an extermist right wing activist judge will help your anti-Americanism "win".

If only you could grasp how foolish you are, and your glee the quinetesence of hypocrisy. You'd destroy the republic in order to protect your bogus pro-life stance, and couldn't care less about truth, or how many lies are told, to advance your moral bankruptcy.

Raw, unscrupulous power-grab, indeed. I hope there's a special Hell for those who lie that they are Christians.

>>Is torture pro-life, Charles, when the victim of it dies as direct result?

The real question is this: if you could go back in time and you met Osama Bin Laden's grandmother and she asked you for an abortion, would you give her one? The clock is ticking. And remember "the pro-life position is not a suicide pact."

This could be a show on FOX. You could have Ralph Reed go back in time and provide "family planning" to those who engage 'possible suspected terrorist-related breeding activities.' Then we could have the GOP debate with all of the candidates defending "morally enhanced birthing" techniques.

Some abortions would save lives, wouldn't they? And that justifies it, plain and simple. "What? Would you convict Ralph Reed? A million dead in LA? No one in their right mind would convict Ralph Reed!" -- I can hear Scalia now.

Taylor and Miers are unquestionably taking it on themselves to break the law as a favor to their old boss and still-current Dear Leader.

As a political matter though, as opposed to legal, Taylor and Miers are sort of sympathetic - it would be hard to start with them for making examples out of those who scoff at Congress's subpoenas.

But they have to make an example out of someone. Taylor and Miers's denial of the subpoenas, backed up by their lawyers' and Fred Fielding's letters, constitutes a big slap across Congress's face. They have a Constitutional duty at this point to respond to that slap with a much bigger slap back. Otherwise, if they back down, they establish a new precedent of Congress's subpoenas being a joke, and validating Fielding's strange theory that outrageously unfounded all-pervasive claims of executive privilege can be reasonably weighed against, and even outweigh, a subpoena from Congress.

Mark Kleiman proposed going after Scooter Libby instead of Taylor as an unsympathetic target for Congress re-establishing its investigative authority. Libby's pending appeal complicates the question of what testimony he gives to Congress though.

An even more excellent idea at the moment would be Alberto Gonzales. Who could hold less sympathy at this point from the American public, or even Congressional Republicans, than Gonzales? Now that we have a fresh, obvious, unavoidable new example of his testimony before Congress constituting perjury and obstruction, Congress should immediately subpoena him, and then if he pulls another Terri Schiavo impersonation on the stand, have the Sargeant-at-Arms toss him in Congress's own slammer in the basement of the Capitol Building. Better yet, get Gonzales and Libby in there at the same time, and tell them they can come out when they feel like refreshing their memory. No pardon or commutation is going to help them there.

Then send out a fresh round of subpeonas to Miers and Taylor. Their minds should be suitably concentrated at that point.

Dahlia Lithwick is among those making the point that Gonzales is actually providing exactly what Bush wants, as an Attorney General whose main job is to obstruct inquiry of any kind into the executive branch and to turn the Department of Justice into an arm of Karl Rove's political reward and punishment machine, while competence is optional and commitment to justice is definitely not wanted.

No wonder Bush actually, shockingly, interrupted a vacation to fly back to Washington to try to keep Terri Schiavo hooked up to the plug. She was probably his first pick for Attorney General.

Who are the attorneys advising Miers and Taylor? Isn't it a violation of ethical standards to advise your client to break federal law (i.e., to ignore a lawful subpoena and refuse to testify)?

I understand that Miers and Taylor think it's in the best interest of the Executive Branch, and George W. Bush, that they do not testify, but it is not in their personal interest. Is not any attorney who advises a client to ignore a subpoena or refuse to appear before a lawful court in violation of ethical norms and opening him/herself up to civil liability or disbarment? If any of these people are ultimately prosecuted for their contempt, the attorney's who advised them, or worse, wrote letters to the Judiciary Committee on behalf of their client stating that the client will not answer a lawful subpoena, will be opening themselves up to a civil malpractice suit will they not? Even worse, could not a prosecutor charge counsel with participation in a conspiracy to obstruct justice, since it appears that the attorney's are helping their clients violate federal law?

This administration continues to defy the law because it has (largely) been immune from any of the usual consequences. Until a court decides that executive privilege protects Taylor and Miers, they should be jailed for contempt of Congress. The administration would back down from its executive privilege assertion and those two would be testifying in days.

Ouch - Keith has a point, just above. One thing that has been painfully lacking throughout the sordid Bush ordeal is ethics regulation of the lawyers involved.

Mike Nifong was rather swiftly investigated and disbarred for his unethical behavior as a lawyer; too bad he hadn't had the good sense to donate lots of money to the Bush campaign or otherwise avail himself of Bush's infamous loyalty-uber-alles. (Cheney shot Harry Whitington in the face, but we can assume that was independent of any ethics discipline process.) Scooter Libby was finally suspended this April as a result of evidence from a multiple felony investigation.

But, we have documentary evidence of the outrageously wrong and hugely damaging legal advice rendered to the United States in documents such as the torture memos, authored in part by John Yoo and signed by Jay Bybee. We have an abundance of evidence of Alberto Gonzales perjuring himself and obstructing justice in testimony to Congress. Enough evidence exists to at least further investigate what kind of outrageously wrong and damaging legal advice Gonzales and Addington have given to the president and vice president. Have their bar ethics committees opened investigations?

"You may want to actually read the Supreme Court decision in Nixon. The Supremes instructed the criminal court to review the demanded materials in camera and only forward those materials which were relevant to criminal charges to the prosecutor with great deference to the President."

"Relevant to a criminal charge" is very different than "proof of a criminal charge". Under FRE 401, quite a lot is relevant to a criminal charge. So your original claim-- that they would have to prove a crime was committed to defeat the privilege-- was a lie.

In any event, the question is what the standard would be in the case of a duly issued congressional oversight subpoena. I am not saying for sure that the privilege would be overridden-- but the standard applied is going to be very different than whether a crime has been committed, because Congress' oversight power is simply broader than that.

(By the way, I might add that the Republican spin that there is no crime in firing the US attorneys is a little smug-- if the critics are right, and they fired, for instance, Carol Lam to interfere with the investigation of Wilkes, Foggo, and Cunningham, that would constitute an obstruction of justice. It would also be investigable as an impeachable offense-- and I don't think anyone claims that executive privilege bars Congress' power to investigate impeachable offenses.)

But Charles, the fact that the President can do as he wishes until the Congress impeaches him is one of your most dearly held positions here. Law? Piffle. Precedent? In the past. Constitution? Scrap of paper. Heck, I'm surprised you even accept impeachment or expiration of term as a restraint on this President at this point.

Are you suggesting he'd have a different view were he to return -- which isn't going to happen?

Then you suggest he's a hypocrite.

You really don't know a whole lot about Chritianity, as is obvious: you have a closed mind, and sit there smirking, as if superior to those who don't believe your uneducated "Christian" view. Here are a few facts historical and theological facts:

1. The "bible" was written by Jews, not by Christians; it is, according to its authors and their descendants, a book of history, not a holy book. You pretend you know better because you'd trather not accept and think about those facts.

2. The "God" of the Old Testament was a tyrant -- "Because I love you I condemn you to burn eternally in Hell". That isn't a rational view, but those who wrote the "bible" weren't educated in critical thinking. The theme of the Old Testament: "eye for an eye" -- revenge.

3. The Old Testament is not relevant to Christianity; it is pre-Christian. Christianity -- named for Christ -- begins with the New Testament (or which nothing was written until some 32 years after Christ was killed), the theme of which is "Turn the other cheek".

The "Christianity" you believe is predictable: bogged down in the muck-and-mire of the Old Testament, by means of which you and your fellow fake Christian mediocrities rationalize the circumventions of the New Testament which are, as example, death penalty, defending torture at the same time as claiming to be a Christian. Christ would preach "turn the other cheek" and "Do unto others as you would have them do unto you". He would, obviously, oppose torture.

You do not oppose torture, because you are a fake Christian, though you hide behind that fake santimony as a way to tell yourself you're superior to those who don't believe the same illiterate gibberish. The same self-serving religiotrash. The same smugly content substitute for thought. The same effort to feel empowered by unquestioningly believing a false view which holds that those who hold the view are by that means superior to those who don't. The same disregard for the rules which are required of genuine Christians -- "Thou shalt not lie" being one especially applicable to your behavior, which behavior routinely violates that Commandment.

A false view that you are such a superior Christian that you are exempt from the rules which are actually the core values of Christianity, without which one cannot be a Christian except by lying that you are.

I grew up with your sort of mindlessly conformist, shallow hypocrite "Christian"; ceaselessly judging others as lacking -- and for whom going to church was mandatory -- as a show to the neighbors that one was a "good Christian".

"If Christ were alive today, he no doubt wouldn't be a Christian" -- Mark Twain.

Then there's no Executive Privilege whatsoever -- Congress alone determines what is an impeachable offense -- at least you've got the circular argument down pat.

# posted by Charles : 3:55 PM

Extremists "think" in simpleton's eithre/or extremes. By contrast: Executive Privilege is not, on one extreme, absolute; and not, on the other extreme, non-existent.

The latter being the fact, thought is then required -- which is the point at which your intellectual laziness, your rejection of thought and reason, kicks in and you resort to false faith-based intellectual dishonesty. It's just so much easier, isn't it, to simply stick to and return yet again to and harp upon your cherished conclusion, without regard for whether it's true, or even plausible.

"Religion" claims to possess Truth, and to be about truth against falsehood and lie. Your enemy is Truth, and truth, and the first lie you tell in effort to pretend -- to yourself; no one else is fooled by such childish magical thinking -- otherwise is to falsely claim you're a Christian.

But Charles, the fact that the President can do as he wishes until the Congress impeaches him is one of your most dearly held positions here. Law? Piffle. Precedent? In the past. Constitution? Scrap of paper. Heck, I'm surprised you even accept impeachment or expiration of term as a restraint on this President at this point.

# posted by Fraud Guy : 6:15 PM

According to Charles, seapration of church and state doesn't exist, because those words aren't in the Constitution. And according to Charles, Executive Privilege exists, even though those words aren't in the Constitution.

Charles has no regard for fact, reason, truth, or even that he's a moral relativist and nihilist; none of that disturbs him. He simply lies that he's a "Christian" and figgers that'll suffice.

I'm curious. What if the courts upheld Miers' and Taylor's declining to testify? Which is certainly possible, given that the federal judiciary is, shall we say, just a few notches to the right of Prof. Levinson. Would it still be unethical for Miers' and Taylor's lawyers to advise them not to testify, on the grounds that they are violating the "true," higher law?

Read "The Closing of the Western Mind", where the author, Charles Freeman, makes a compelling argument that the current structure of the New Testament, and Christian theology, were not due to religious questions (the beliefs enshrined in both were actually minority positions not supported by the Apostles and the known teachings of Jesus), but for the political expediency of the failing Roman Empire, and then arguably to strengthen the internicine maneuverings of various church leaders.

As even Thomas Jefferson said, when you take out the diamonds of what Christ said out from the dross that accreted into the New Testament, you have a very different, very exemplary book.

Of course, if you just want to follow the teachings of the vindictive, power hungry fathers of the church, instead of those of Jesus, go ahead.

Bart: "You may want to actually read the Supreme Court decision in Nixon. The Supremes instructed the criminal court to review the demanded materials in camera and only forward those materials which were relevant to criminal charges to the prosecutor with great deference to the President."

"Relevant to a criminal charge" is very different than "proof of a criminal charge". Under FRE 401, quite a lot is relevant to a criminal charge. So your original claim-- that they would have to prove a crime was committed to defeat the privilege-- was a lie.

What? The only materials which are relevant to a criminal charge are those which constitute proof of guilt or innocence of that charge.

At the time the subpoena was delivered for the Presidential materials, there was a great deal of evidence of criminal activity by multiple members of the Nixon Administration in the public record. Even in that case, executive privilege was not defeated by the mere subpoena allowing the prosecutor to receive the materials and decide for himself what was criminal. Rather, a court would conduct an in camera review the materials for evidence of criminal activity and only forward those materials.

In this case, there is absolutely no evidence of criminal activity, including the absurd obstruction of justice charges being proffered as a fig leaf for this partisan witch hunt. Congress has hauled in dozens of witnesses who have provided no evidence of criminal acts. Therefore, you do not even have the criminal predicate present before the Nixon case to even ask a court to review the materials.

If Congress went to court with this nonsense asking it to strip executive privilege, I would not wager on Congress' chances of success. That is why Congress is attempting to bully these witnesses with unprecedented contempt citations.

As I said, JNagarya, you read the Book of Revelation and then we can discuss ALL of your questions.

# posted by Charles : 1:55 PM

Answer my questions, or continue to be seen as a perpetual bigot who hasn't a clue as to the meaning of fact versus fantasy, let alone reason and "debate," and who ignores all evidence which refutes his illiterate's poppycock.

On one hand, you assert that separation of church and state doesn't exist because those words are in the Constitution; on the other, you assert Executive Privilege exaists, even though those words don't exist in the Constitution. Is that fundamental contradiction in any sense whatsoever reasonable? No, it is not. It is utterly mindless nonsense.

But you don't care that it is that; all that matters to you is getting what you want, and you'll tell any lie, and assert any bullshit, toward that end. You qualify as being the opposite of a believer in truth. You don't even know the legitimate meaning of "faith" -- and don't care about that either. You qualify as an illiterate gibberish-spewing nutcase who doesn't even care -- if he recognizes it -- whether his "evidence" actually supports his fantasies; all that matters is the fantasy. All that matters is that you can say a thing is so, and that is sufficient for you to believe it is so. To you reality is a fantasy

In response to my simple clarifying question ("the first time [Christ] came to earth, or when He returns?") YOU asked "Are you suggesting he'd have a different view were he to return -- which isn't going to happen?" I don't think it's unreasonable to ask whether you've even read the Book of Revelation, which is directly on point to your follow-up. YMMV.

"In response to my simple clarifying question ("the first time [Christ] came to earth, or when He returns?") YOU asked "Are you suggesting he'd have a different view were he to return -- which isn't going to happen?" I don't think it's unreasonable to ask whether you've even read the Book of Revelation, which is directly on point to your follow-up. YMMV.

"# posted by Charles : 4:44 PM"

You are still avoiding my questions, Charles. I'll help you on one point:

If Christ were God when he came the first time, then he was perfect. That means he had it right the first time, therefore would not change his mind on the point. Now answer the question without scrambling for the "bible" as substitute for thinking for yourself:

Would Jesus "Turn the Other Cheek"/"Do Unto Others as You Would Have Them Do Unto You" Christ commit torture, Charles?

I'm also wiating for you to answer my other questions as to the prevance of the "bible". And I'll toss in that Christ was not blonde-haired and blue-eyed; he was dark-skinned with black hair -- a Middle Eastern Semite.

Meanwhile, from A Man for All Seasons:

William Roper: "So, now you give the Devil the benefit of law!"

Sir Thomas More: "Yes! What would you do? Cut a great road through the law to get after the Devil?"

Roper: "Yes, I'd cut down every law in England to do that!

More: "Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!"

As concerns the last point: our system of laws is based upon a balancing of interests; everyone has the same rights, responsibilities, and protections. That you do to others under the law -- especially in denying them the protections of the law -- you authorize the law to do to you.

Book of Revelations? We should no more cite the Bible than the the Muslim Koran, Taoist Tao te Ching, the Buddhist Dhammapada, the Sikh Adi Granth, the Jewish Torah, the Hindu Veda, etc. By our Constitution, power and law depends explicitly from the people, including all those I've listed, not from any Bible or God.